March 8, 2021

In District and Appellate Courts, Pro Bono Team’s Amicus Brief on Repeal of 50-a Leads to Civil Rights Win


A Milbank LLP team filed an amicus brief in the Southern District of New York and the Court of Appeals for the Second Circuit against the police, firefighters and prison guards’ unions in New York City on behalf of Common Cause New York, Reinvent Albany, Citizens Union, and BetaNYC, organizations that advocate for government transparency. The brief challenged the unions’ request for a preliminary injunction in their claim that the release of law enforcement disciplinary records in the wake of the repeal of section 50-a (“50-a”) of New York’s Civil Rights Law constitutes violations of law enforcement officials’ rights. The brief was drafted by associate Josh Zimberg, and the team also included associate Kamel Aitelaj and partner Sean Murphy, who oversaw the project.

In June 2020, the New York legislature repealed 50-a and added provisions to the Freedom of Information Law (“FOIL”) that open New York law enforcement officials’ disciplinary records up to FOIL. Although the subsequent release of these officials’ disciplinary records is the direct result of the New York State legislature’s choice to repeal section 50-a and broaden FOIL, the police, firemen and prison guards’ unions argued that the consequences of the implementation of FOIL constitutes violations of law enforcement officials’ collective bargaining and other rights, as well as violations of breach of contract.

In contrast, the Milbank team argued that in releasing these records to the public, New York City is fulfilling its legal requirement under the newly expanded FOIL and facilitating the legislature’s demand for a more open government. The brief discussed the importance of FOIL and contended that both public safety and the law enforcement agencies would be improved through compliance with the law. Furthermore, the team stated that the explicit goal of the statute is to bring law enforcement under the same FOIL rules as New York State’s governor, senators, state assemblymen, assistant attorney generals, medical professionals and lawyers, thereby equalizing public record disclosure throughout the state. The brief also noted that the unions were, in essence, taking issue with the law without offering a legitimate challenge to the repeal or the updated FOIL provisions. Therefore, the amicus brief argued the lawsuit was misdirected, as the unions had filed their claim against New York City despite the fact that the state legislature, not the City, made the decision to publicize these disciplinary documents.

On August 21, 2020, Judge Katherine P. Falia of the Southern District of New York, in part as a result of the brief, primarily denied the unions’ preliminary injunction request. On February 16, 2021, the Second Circuit handed down a summary order affirming the District Court’s decision to deny the unions’ request to enjoin disclosure of misconduct allegations against their members, a reaffirmation of the New York legislature’s belief in the importance of freedom of information and transparency. “The legislature intended to keep government accountable in making disciplinary records publicly available,” said Mr. Zimberg. “This ruling is a major step forward in improving our law enforcement agencies and progressing civil rights through criminal justice reform.”